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Right to freedom of expression

158. The Appeals Chamber considers that Hartmann appears to submit that, had the Trial Chamber enforced a “strong” presumption in favour of unrestricted publicity, it would have ruled in her favour and permitted her to disclose confidential information pursuant to her freedom of expression rights. The Appeals Chamber considers that there is no merit in Hartmann’s submission. There is no strong presumption of unrestricted publicity for matters a Chamber has ruled are not to be disclosed to the public. This was made clear in the Jović case, in which it was held that:

The effect of a closed session order is to exclude the public, including members of the press, from the proceedings and to prevent them from coming into possession of the protected information being discussed therein. In such cases, the presumption of public proceedings under Article 20(4) of the Statute does not apply. [1]

159. At the heart of Hartmann’s submission is the alleged inconsistency of the Trial Judgement with freedom of expression principles recognised by the ECHR. The Appeals Chamber is not bound by the findings of regional or international courts and as such is not bound by ECtHR jurisprudence.[2]

160. The Appeals Chamber notes that Article 21 of the Statute of the Tribunal mirrors the provisions of Article 14 of the ICCPR.[3] The ICCPR and its commentaries are thus among the most persuasive sources in delineating the applicable protections for freedom of expression in the context of the Tribunal’s proceedings.[4] The Human Rights Committee of the United Nations (“Human Rights Committee”) has interpreted Article 14(1) of the ICCPR to require that courts’ judgements be made public, with “certain strictly defined exceptions.”[5] The Appeals Chamber notes that, although Article 19(2) of the ICCPR states that “[e]veryone shall have the right to freedom of expression,” Article 19(3) recognises that

The exercise of the right provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

The travaux préparatoires of the ICCPR indicate that the “protection of […] public order” in Article 19(3) was intended to include the prohibition of the procurement and dissemination of confidential information.[7] In respect of whether the restriction to an individual’s freedom of expression is “necessary” to achieve its aim, the Human Rights Committee has considered whether the action taken was proportionate to the sought-after aim.[8]

161. Based upon the foregoing, therefore, in order to legitimately restrict Hartmann’s freedom of expression under Article 19 of the ICCPR, the restriction must have been provided by law and proportionately necessary to protect against the dissemination of confidential information.[9] The two Appeal Decisions in the case of Prosecutor v. Slobodan Milošević contained restrictions on the freedom of expression that were “provided by law” because they were filed confidentially under protective measures granted pursuant to Rule 54 bis of the Rules. Furthermore, restricting Hartmann’s freedom of expression in this manner was both proportionate and necessary because it protected the “public order” by guarding against the dissemination of confidential information. These restrictions were therefore within the ambit of Article 19(3) of the ICCPR.

162. In this regard, the Appeals Chamber observes that the Trial Chamber found that the effect of Hartmann’s disclosure of confidential information decreased the likelihood that states would cooperate with the Tribunal in the future, thereby undermining its ability to exercise its jurisdiction to prosecute and punish serious violations of humanitarian law.[10] The Trial Chamber further found that prosecuting an individual for contempt under these circumstances was proportionate to the effect her actions had on the Tribunal’s ability to administer international criminal justice.[11] The Appeals Chamber is therefore of the view that the Trial Chamber was correct to conclude that Rule 54 bis of the Rules permits the Tribunal to impose confidentiality in an effort to secure the cooperation of sovereign states.[12] In light of the foregoing, the Appeals Chamber is satisfied that the Trial Chamber adequately took into account all relevant considerations to ensure that its Judgement was rendered in conformity with international law.[13]

163. Hartmann also relies on an Appeals Chamber decision in Brđanin to support her argument that the Trial Chamber erred by failing to consider the public’s right to receive information disclosed by Hartmann in evaluating the proportionality of the interference with her freedom of expression.[14] In the instant case, however, the Appeals Chamber considers that the Trial Chamber did explicitly consider the public’s right to receive information. In evaluating the proportionality of the interference with Hartmann’s freedom of expression, it considered certain factors that were:

salient in weighing the public interests involved: namely, the public interest in receiving the information and the protection of confidential information to facilitate the administration of international criminal justice, which is also in the public interest, indeed, on an international scale.

164. Finally, the Appeals Chamber considers ARTICLE 19’s discussion of national legal standards regarding freedom of expression.[16] While ARTICLE 19 sets out different ways in which domestic jurisdictions address freedom of expression in the context of contempt of court, it cites no jurisprudence to support the position that contempt proceedings for disclosing confidential information in violation of a court order impermissibly restrict an individual’s freedom of expression.

[3] See U.N. Security Council, Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), U.N. Doc. S/25704, 3 May 1993, para. 106. This Report was issued pursuant to U.N. Security Council Resolution 808, which requested the Secretary-General “to submit for consideration by the [Security] Council […] a report” on the establishment of the Tribunal. See U.N. Security Council Resolution 808, U.N. Doc, S/RES/808 (1993), p. 2.

[4] The ICCPR has 167 state parties and, as such, is considered to be closer to universal application than the European Convention, which is a regional human rights instrument. See United Nations Treaty Collection, <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>, accessed 11 July 2011. The Appeals Chamber in the Barayagwiza Decision stated that the ICCPR “is part of general international law and is applied on that basis.” In contrast, the Appeals Chamber indicated that, “[r]egional human rights treaties, such as the [ECHR] and the American Convention on Human Rights, and the jurisprudence developed thereunder, are persuasive authority which may be of assistance in applying and interpreting the Tribunal’s applicable law. Thus, they are not binding of their own accord on the Tribunal. They are, however, authoritative as evidence of international custom.” Jean-Bosco Barayagwiza v. The Prosecutor, Case. No. ICTR-97-19-AR72, Decision, 3 November 1999, para. 40.

[5] CCPR General Comment No. 13: Article 14 (Administration of Justice) Equality before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law, 13 April 1984, para. 6.

[6] ICCPR, Article 19(3). Article 14(1) of the ICCPR also restricts a journalist’s right to report on court proceedings. It states, inter alia, that “the press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. This provision was cited in the Blaškić and Jović cases. See Jović Contempt Trial Judgement, para. 23, note 95; Prosecutor v. Tihomir Blaškić, Case No. IT-95-14-PT, Decision on the Objection of the Republic of Croatia to the Issuance of Subpoenae Duces Tecum, 18 July 1997, note 248.

[7] See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 2nd Revised Edition N.P. Engel, 2005, pp. 464-65 (stating that the term “public order” “covers the grounds for restriction set out in Art. 10(2) of the [ECHR] and repeatedly proposed during the drafting of Art. 19 of the [ICCPR], namely, the procurement and dissemination of confidential information and endangering the impartiality of the judiciary”).

[8] Jong-Choel v. The Republic of Korea(CCPR Communication No. 968/2001), U.N. Doc. A/60/40 vol. II (27 July 2005), p. 60, para. 8.3; see alsoMarques v. Angola (CCPR Communication No. 1128/2002), U.N. Doc. A/60/40 vol. II (29 March 2005) p. 181, para. 6.8 (“The Committee observes that the requirement of necessity implies an element of proportionality, in the sense that the scope of the restriction imposed on freedom of expression must be proportional to the value which the restriction serves to protect.”).

[12] Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 72. The Trial Chamber relied upon testimony by Robin Vincent, who testified that the confidentiality breaches would lead to less cooperation by sovereign states regarding the disclosure of information, thereby affecting the Tribunal’s ability to administer international criminal justice. The Trial Chamber also noted that “the testimony was not challenged by the Accused”. See Trial Judgement [In the Case Against Florence Hartmann, Case No. IT-02-54-R77.5, Judgement on Allegations of Contempt, 14 September 2009], para. 72, note 171.

[13] ARTICLE 19’s brief discusses other human rights instruments that guarantee freedom of expression. See ARTICLE 19 Amicus Brief, para. 3. While the Appeals Chamber acknowledges that these instruments contain freedom of expression guarantees, they follow a similar approach to restrictions on freedom of expression as the European Convention and the ICCPR. The UDHR states: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.” UDHR, Article 29(2). The African Charter on Human Rights and Peoples states: “Every individual shall have the right to express and disseminate his opinions within the law”. African Charter on Human and Peoples' Rights, Article 9(2). The American Convention on Human Rights similarly notes: “Everyone has the right to freedom of thought and expression”. American Convention on Human Rights, Article 13(1). In Article 13(2), it restricts that right by noting, “The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure (a) respect for the rights or reputations of others; or (b) the protection of national security, public order, or public health or morals.” American Convention on Human Rights, Article 13(2).